Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Detaining a voluntary patient in NSW

Today’s correspondent is a Paramedic with NSW Ambulance who asks about the Mental Health Act 2007 (NSW) s 20. That section says:

(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

This section appears in Chapter 3, Part 2, Division 2 of the Act. Chapter 3 is about ‘Involuntary Admission and Treatment in and Outside Facilities’. Part 2 is ‘Involuntary Detention and Treatment in Mental Health Facilities’ and Division 2 is ‘Admission to and initial detention in mental health facilities’. With respect to involuntary detention, s 12 says that a person:

… must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that:

(a) the person is a mentally ill person or a mentally disordered person, and

(b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

One of the objects of the Act is ‘to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis’ (s 3(c)).

My correspondent tells me that

… recently we have been receiving much grief from our local police regarding management of voluntary patients. It is my understanding that we can only enact a Section 20 if a patient refuses to be transported voluntarily. Specifically, we had a patient last night who mentioned suicide during an argument with his girlfriend. We asked that he come to hospital with us for assessment and to get him out of a volatile situation. The man was quite happy to comply, did not need any convincing and walked freely to the ambulance for transport. At this point we were told that we would have to complete the Section 20 by the Police. I advised that were unable to do that under the Act as the patient was Voluntary. The harassment continued for a further 5 minutes with the Officer insisting that their Barrister had advised them that we did have the right to Section voluntary patients. I still refused as it goes against my training and understanding of the Act. To me the wording is clear in the Act in this regard, but as it’s not my area of expertise I would really appreciate your interpretation of this.

I can’t understand what the police officer was talking about. The aim of modern mental health legislation is to limit the use of involuntary treatment. As an ambulance officer, you can transport a person to where health care is required. I suppose someone might want to argue that you can only transport to a mental health facility by virtue of s 20 and s 20 is about involuntary treatment. That argument would mean you couldn’t take a voluntary patient to a mental health facility but that would be rubbish. If a person is willing to go with a paramedic, and the paramedic is willing to take them, the paramedic can lawfully drive them anywhere they want to go. The fact that ambulances only transport people to hospital is a decision of the ambulance service not some legal rule. So if paramedics want to take a person to a mental health facility and the person wants to go, so 20 is not relevant.

The question for the police officer is even if a voluntary patient can be sectioned, why would or should they be? Treating them as a voluntary patient is the least restrictive approach. If the police officer wants to ensure the person is not then free to leave the facility they can arrest them if they think an offence has been committed.

In the absence of some explanation as to why the police officer thought compulsory detention was warranted, I can’t see any reason to pretend to detain a person who is willing to go with the ambulance service on a voluntary basis.

10 thoughts on “Detaining a voluntary patient in NSW”

Wasn’t there an MOU between NSWAS & NSWPOL, regarding transport of any person for Mental Health Assessment ?
Ambulance would only transport with a police escort in the vehicle.
It sounds like the police officer wasn’t going to escort without the patient Sectioned, and was considering the situation a waste of their time being there.

There was no requirement for the Police to escort as the man was compliant, friendly and not judged as a risk to Paramedics. Part of the reasoning, which I understand, but that does not negate the legalities, is that if I transport a patient voluntarily to the hospital and hand them over to the nursing staff at triage, should that patient immediately leave without getting assessment or help, then he is completely free to do so without a section in place.

This question came by email and is relevant to this post so I answer it here rather than as a topic in its own right. Today I’m told:

We section mental health patients if they need to come with us to hospital unwillingly. If they come willingly, we don’t restrain them under section 20. Sometimes patients that are a serious threat to themselves or others but agree to transport and are not sectioned by the ambos. It is possible that these patients can walk out of the ED before being seen by a doctor. Since they are a threat to themselves or others, eloping before treatment is dangerous. But since they are not sectioned, they are free to leave! It is obvious that this scenario is bad; somebody can get killed or injured, such patients need to stay in the ED until seen by a doctor. Would it not be a good idea to section them to obligate the doctor to see them, and to stop them from eloping? Even if they came willingly? Can we section patients that are dangerous to prevent them from eloping even if they agreed to come to the ED willingly? Eloping is a big problem in our rural hospital, we do not have security staff and there is often a delay between drop-off and being seen by a physician.

As noted in this post, the use of involuntary treatment is a last resort and only justified where ‘no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person’. Note also s 68 which says:

It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder:
(a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given…
(f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances…

Section 20 doesn’t actually mention restraint, it just says ambos can take a person to a facility. Arguably s 20 is relied on whenever paramedics chose to bypass the local casualty and go to a mental health facility, but the section has to be read in context. As noted it appears in the part of the Act dealing with involuntary treatment and s 18 says

(1) A person may be detained in a declared mental health facility in the following circumstances:… (b) after being brought to the facility by an ambulance officer (see section 20)…

That is they ‘may be detained’ not ‘must be’ detained. The question of whether they are detained in that facility is a matter for the facility, not the ambulance officers.

The authority to ‘restrain’ someone comes in section 81 which says that any person who is authorised to take a person to a mental health facility (which includes an ambulance officer relying on s 20) may:

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and
(b) restrain the person in any way that is reasonably necessary in the circumstances.

Further (s 81(3)):

A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

Putting that all together, if an ambulance officer finds a person and the ambulance officer believes ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then the ambulance officer may take that person to a mental health facility. In the course of doing that the officer may use force and/or sedation but only where that is reasonably necessary. I can’t see how that could be necessary if the patient is being cooperative even if they may be a threat to themselves or to others should they later change their mind and chose to leave the mental health facility.

Once the person is delivered to the mental health facility, like delivering them to a hospital, it is up to the facility to take on their care. They MAY be detained on the basis that they were delivered by the ambulance service, but it’s not the case that they must be. People can get killed or injured if they walk out of casualty before being seen by a doctor and that’s true for people with a mental illness or a physical illness.

Reading s 20 in context it says that ambulance officers may take people to a mental health facility if they need to be taken there. Read with s 81 it says force and sedation can be used but only when that is necessary and the use of force and restraint should be considered as a last resort. As with any patient, what happens after you have handed them over to the next level of care is not a matter for the paramedics.

Thank you so much for the comment that you added to your post yesterday. I think I now know what to: if they come voluntarily, and assuming they are competent and with capacity, our obligations to the patients are done once we hand them over. If they elope and kill someone it is the hospitals problem. I take this from your point “…what happens after you have handed them over to the next level of care is not a matter for the paramedics”. Do I understand you correctly? I almost always strictly follow the procedures, laws and regulations of the that govern my paramedic practice, because there is an almost perfect concordance of these rules with my moral compass. I must say, handing a voluntary mental patient with violent inclinations over to a hospital knowing full well that they are likely to walk out of the ED and possibly kill someone seems wrong. But I understand what you saying, one cannot bend the law to fix a problem that needs a different kind of remedy.

The question of detention in hospital is not a matter for paramedics. Section 20 says you can take them to hospital, and s 18 says a person may be detained on that basis. I’m not sure what you think would happen or how it would change the situation if you purport to ‘detain’ the person under s 20. Your action doesn’t compel the hospital to do anything that they would, or wouldn’t do, if you didn’t purport to treat the person as an involuntary patient.

Isn’t the situation like any patient handover to hospital? If you take a patient to casualty with a medical condition that you think is serious and potentially fatal, you don’t want the patient to leave before they are seen by the doctor. I infer that you explain the clinical position to the triage nurse and communicate your concerns, but then you leave, the subsequent care is a matter for the hospital, and the patient can leave if they want to, even if they then drop dead on the street.

In this case I assume you also give your concerns to the triage staff and express your concerns, but having handed the patient over the delivery of care then passes to the hospital that can, if necessary, detain the patient. So you may be ‘handing a voluntary mental patient with violent inclinations over to a hospital’ but then the hospital can do what they need to do. They may chose to detain the patient if they are satisfied the requirement for detention is met.

If you are concerned that the person is a serious threat to others and you are not yet at hospital, call the police. The criteria for action under s 20 is that ‘it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ that is detention is for the patient’s benefit. If the patient is there voluntary and compliant then detention isn’t warranted.

Police, acting under s 22, can detain a person because it is in someone else’s best interests. That is police can act when ‘it is probable that the person will attempt to kill … any other person or attempt to cause serious physical harm to … any other person’ and ‘it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law’, ie it would be better to deal with them under mental health legislation rather than arresting them for an offence.

Why the Hell would any Ambulance Officer feel obligated to transport ANYONE in their vehicle, where there was an indication, that the person wanted to ‘kill them’ ??

Without knowing specific NSWAS protocols, I’d expect it was the WHS Right of the crew to make ‘the call’, that a situation presented an ‘unacceptable’ risk of injury ( or worse ) to the crew of the vehicle, and that Police will be called to ‘take over’.

Working in a ‘secure’ facility ( that not only offers ‘treatment’ but also ‘assessment’ for Police Presentations ), we often see the Police affect the ‘transport’, and the Ambulance Officers arrive in convoy, in an empty vehicle ! ( the appropriate paperwork and procedures then follow on, according to the SOPs of the receiving facility, in conjunction with the Legislative requirements of both Police & Ambulance ).

On rare occasions, the receiving facility can refuse to accept the person being transported for ‘assessment’. Typically, this relates to Police ‘assuming’ that the facility ‘always’ has a bed available, or other capacity to ‘accept’ the person.

If a person has been transported to a Mental Health facility, for the purpose of ‘assessment’, with a view to the person then being detained, and the transport event was NOT planned in advance ( with the receiving facility ), then Police & Ambulance must take the person back with them, and take them to another facility ( which WOULD be arranged before they left the first facility ). It means, that both uniformed Services are required to wait with the person at the facility that has declined receiving them, potentially for an hour or more. Thus, it is very important, that both NSW AS & NSWPOL co-ordinate their actions with the ‘Admissions’ office of any Public Hospital, to ensure that the facility actually has a bed and the human resources to provide the appropriate level of care for the subject person. Eg. Hospital Security; a number of male Nurses ( a formal ‘aggression response team’ ), a bed in a secure ward with an available ‘Seclusion Room’ if deemed necessary.

I didn’t infer that the question implied that the person wanted to kill them; the person may want to kill someone else but be quite willing to cooperate with the ambulance officers. Section 20(1) says that if ambulance officers have ‘serious concerns relating to the safety of the person or other persons’ then they may request police assistance and police ‘must, if practicable: (a) apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or (b) cause or make arrangements for some other police officer to do so.’

Perhaps the significant aspect of this discussion centres around that brief period where a voluntary patient is conveyed to hospital by Paramedics and leaves prior to being assessed by a medical practitioner. If subsequent to their departure they encounter themselves to some mischief then clearly the hospital or Paramedics are going to be the focus of any investigation. Additionally, for the few minutes it takes to complete the section 20, why would you not complete the document if it was going to protect both yourself and your patient.

As a practising Paramedic, my advice is to utilise the Section 20. I would be interested to hear from those who would advocate not using it.

I encounted a NSW AS paramedic this afternoon, who asked if he needed to write a S.20 on a patient in the locked containtainment ward of the hospital I’m working at .
Really ??
Where did he think the patient was ?
The crew needed to be escorted through three locked doors to get into the building, and even though the patient was still wearing his ‘prison greens’ from his last ‘bed and breakfast’, the ambos had no idea that the patient was well and truly ‘under the Act’ already.
So, seems like the ambos need a bit more Mental Health training ??